CHAPTER 5 - WATER RESOURCES ARTICLE 3 - WELLS AND DRINKING WATER PART 2 - GROUND-WATER USE GENERALLY § 12-5-105 - Permits for farm uses; notice of transfer or modification in use or capacity; nonuse; suspension or modification; priority uses; reporting and measuring water withdrawals; no effect on existing common or statutory law; categories for use

O.C.G.A. 12-5-105 (2010)12-5-105. Permits for farm uses; notice of transfer or modification in use or capacity; nonuse; suspension or modification; priority uses; reporting and measuring water withdrawals; no effect on existing common or statutory law; categories for use

(a) Notwithstanding any provisions of Code Section 12-5-95, 12-5-96, or 12-5-97 to the contrary, a permit to withdraw, obtain, or utilize ground waters for farm uses, as that term is defined by paragraph (5.1) of Code Section 12-5-92, shall be issued by the director to any person when the applicant submits an application which provides reasonable proof that the applicant's farm use of ground water occurred prior to July 1, 1988, and when such application is submitted prior to July 1, 1991. If submitted prior to July 1, 1991, an application for a permit to be issued based upon farm uses of ground water occurring prior to July 1, 1988, shall be granted for the withdrawal of ground water at a rate of withdrawal equal to the greater of the operating capacity in place for withdrawal on July 1, 1988, or, when measured in gallons per day on a monthly average for a calendar year, the greatest withdrawal capacity during the five-year period immediately preceding July 1, 1988. If submitted after July 1, 1991, or, regardless of when submitted, if it is based upon a withdrawal of ground water for farm uses occurring or proposed to occur on or after July 1, 1988, an application shall be subject to evaluation and classification pursuant to Code Sections 12-5-96 and 12-5-97, but a permit based upon such evaluation and classification shall be issued to ensure the applicant's right to a reasonable use of such ground water. Applications under this Code section submitted on or after April 20, 2006, for farm use within the Flint River basin shall be assessed a nonrefundable application fee in the amount of $250.00 per application. Any permit issued pursuant to this Code section shall be further conditioned upon the requirement that the permittee shall provide, on forms prescribed by the director, information relating to a general description of the lands and number of acres subject to irrigation and the permit; the name and address of the permittee; a description of the general type of irrigation system used; well construction; and pump information, including rated capacity, pump setting depth, and power information.

(b) Notwithstanding any provisions of Code Section 12-5-95, 12-5-96, or 12-5-97 to the contrary, permits to withdraw, obtain, or utilize ground waters for farm uses, as that term is defined in paragraph (5.1) of Code Section 12-5-92, whether for new withdrawals or under subsection (a) of this Code section, shall be governed as follows:

(1) A permit issued, modified, or amended after July 1, 2003, for farm uses shall have annual reporting requirements. Permits applied for under this Code section on or after April 20, 2006, for farm use within the Flint River basin shall have a term of 25 years and shall be renewed at the original permitted capacity unless an evaluation of the water supply by the division indicates that renewal at the original capacity would have unreasonable adverse effects upon other water uses. The division may renew the original permit at a lower capacity, but such capacity shall be based on the reasonable use of the permittee and evaluation of the resource. All permits issued under this Code section may be transferred or assigned to subsequent owners of the lands which are the subject of such permit; provided, however, that the division shall receive written notice of any such transfer or assignment, and any modification in the use or capacity conditions contained in the permit or in the lands which are the subject of such permit shall require the permittee to submit an application for review and approval by the director consistent with the requirements of this part;

(2) Permits for farm use, after initial use has commenced, shall not be revoked, in whole or in part, for nonuse; except that the director may permanently revoke any permit under this Code section for farm use within the Flint River Basin applied for on or after April 20, 2006, if initial use for the purpose indicated on the permit application, as measured by a flow meter approved by the State Soil and Water Conservation Commission, has not commenced within two years of the date of issuance of the permit unless the permittee can reasonably demonstrate that his or her nonuse was due to financial hardship or circumstances beyond his or her control;

(3) The director may suspend or modify a permit for farm use if he or she should determine through inspection, investigations, or otherwise that the quantity of water allowed would prevent other applicants from reasonable use of ground water beneath their property for farm use;

(4) During emergency periods of water shortage, the director shall give first priority to providing water for human consumption and second priority to farm use; and

(5) The importance and necessity of water for industrial purposes are in no way modified or diminished by this Code section. (b.1)(1) The State Soil and Water Conservation Commission shall have the duty of implementing a program of measuring farm uses of water in order to obtain clear and accurate information on the patterns and amounts of such use, which information is essential to proper management of water resources by the state and useful to farmers for improving the efficiency and effectiveness of their use of water, meeting the requirements of paragraph (1) of subsection (b) of this Code section, and improving water conservation. Accordingly, the State Soil and Water Conservation Commission shall on behalf of the state purchase, install, operate, and maintain water-measuring devices for farm uses that are required by this Code section to have permits. As used in this paragraph, the term "operate" shall include reading the water-measuring device, compiling data, and reporting findings.

(2) For purposes of this subsection, the State Soil and Water Conservation Commission:

(A) May conduct its duties with commission staff and may contract with other persons to conduct any of its duties;

(B) May receive and use state appropriations, gifts, grants, or other sources of funding to carry out its duties;

(C) In consultation with the director, shall develop a priority system for installation of water-measuring devices for farm uses that have permits as of July 1, 2003. The commission shall, provided that adequate funding is received, install and commence operation and maintenance of water-measuring devices for all such farm uses by July 1, 2009; provided, however, that the commission shall not install a water-measuring device on any irrigation system for such a farm use if such irrigation system is equipped with a meter as of July 1, 2003, and such meter is determined by the commission to be properly installed and operable, but any subsequent replacement or maintenance of such an irrigation system that necessitates replacement of such meter shall necessitate installation of a water-measuring device by the commission;

(D) May charge any permittee the commission's reasonable costs for purchase and installation of a water-measuring device for any farm use permit issued by the director after July 1, 2003; however, for permit applications submitted to the division prior to December 31, 2002, no charge shall be made for such costs; and

(3) Any person who desires to commence a farm use for which a permit is issued after July 1, 2003, shall not commence such use prior to the installation of a water-measuring device by the commission.

(4) Subject to the provisions of subparagraph (C) of paragraph (2) of this subsection, after July 1, 2009, no one shall use water for a farm use required to have a permit under this Code section without having a water-measuring device in operation that has been installed by the commission.

(5) Employees or agents of the commission are authorized to enter upon private property at reasonable times to conduct the duties of the commission under this subsection.

(6) Any reports of amounts of use for recreational purposes under this part shall be compiled separately from amounts reported for all other farm uses.

(c) Nothing in this Code section shall be construed as a repeal or modification of Code Section 12-5-104.

(d) In addition to the other provisions of this Code section, there shall be established three categories of farm use ground-water withdrawal permits: active, inactive, and unused. The rules and regulations implementing this subsection shall provide without limitation for the following:

(1) An active farm use ground-water withdrawal permit means one that has been acted upon and used for allowable purposes;

(2) An inactive farm use ground-water withdrawal permit means one where the permit holder has requested inactive status in order to retain ownership of the permit for possible future use or reuse. Inactive permits shall be retained by the permit holder without modification;

(3) An unused farm use ground-water withdrawal permit means one that has never been used for allowable purposes. Unused permits expire after two years unless changed to active or inactive status by notification to the director. Unused permits shall not be transferred or assigned to subsequent owners of the lands as provided in paragraph (1) of subsection (b) of this Code section;

(4) An inactive farm use ground-water withdrawal permit shall be reclassified to active when the permit holder has given the director 60 days' written notice and paid any applicable fees in accordance with subsection (a) of this Code section; and

(5) The director shall, via certified mail, return receipt requested, contact, or cause to be contacted, any person who holds a permit that the director has determined is unused. The notification shall include the permit identification and information regarding the classifications and procedures for changing classifications. The permit holder shall have 120 days to respond after which the director shall issue a second notice via certified mail, return receipt requested. Two years after the date on which the director first notified the permit holder via certified mail, return receipt requested, of the unused status determination of the permit, the director shall revoke the permit if the permit holder has not requested that the unused permit be reclassified as inactive or active.